Elena Kagan on Civil Rights

Concurred on no longer deny gays the right to marriage

In a long-sought victory for the gay rights movement, the Supreme Court ruled by a 5-to-4 vote that the Constitution guarantees a right to same-sex marriage. "No longer may this liberty be denied," Justice Anthony Kennedy wrote for the majority
in the historic decision. "No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were."

The decision, which was the culmination of decades of litigation and activism, set off jubilation and tearful embraces across the country, the first same-sex marriages in several states, and signs of resistance--or at least stalling--in others. It came
against the backdrop of fast-moving changes in public opinion, with polls indicating that most Americans now approve of the unions.

Justice Elena Kagan, among the court's four more liberal justices, joined Justice Kennedy's majority opinion.

Concurred on allowing federal ObamaCare subsidies

The Supreme Court upheld one of the main tenets of ObamaCare, ruling 6-3 that millions of Americans are entitled to keep the tax subsidies that help them afford insurance. Chief Justice John Roberts wrote the court's majority opinion and was joined by
Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

The ruling, the 2nd case in which the justices have decided in favor of the Affordable Care Act, preserves benefits for an estimated 6.4 million Americans &
deals a crippling blow to the law's Republican opponents, who have attempted to undermine it since its passage in 2010.

The law's architects claimed that subsidies were always meant to be distributed through both federal and state channels, and that
the goal of the law was to cover all Americans. The Supreme Court agreed. Roberts said [forbidding federal subsidies] "would destabilize the individual insurance market, and likely create the very 'death spirals' that Congress designed the Act to avoid."

Oppose don't-ask-don't-tell but defend it as current law

Kagan has said that she opposes the military's "don't ask, don't tell" policy, which bars gays & lesbians from serving openly in the armed forces. But in questioning before the Judiciary Committee earlier this year, Kagan said that, as solicitor general,
she had sought "to vigorously defend all statutes, including the statute that embodies the `don't ask, don't tell' policy."

Some activists and legal scholars fear that the same principle might apply to her view of California's ban on same-sex marriage.
Kagan's apparent deference to the political process could override her personal opposition to a ban on same-sex marriage, the thinking goes. As Kagan said in her testimony before the Senate Judiciary Committee in June: "I don't think courts are all there
is in this government."

Still, most of the country's leading LGBT rights organizations have welcomed Kagan's nomination to the Court, praising her promise of a "fair shake for every American" as an implicit commitment to LGBT equality.

Defend Defense of Marriage Act, since it is the law

During her solicitor general confirmation, Kagan was asked about the Defense of Marriage Act, under which states don't have to recognize same-sex marriages from other states. She said she would defend the act, "if there is any reasonable basis to do so."

Kagan's biggest vulnerability is her position against "don't ask, don't tell," the ban on gays openly serving in the military, which led to her decision as dean of Harvard Law School to bar military recruiters from the school's career office.

Source: Carol Lee on Politico.com, "Gay rights"
, May 12, 2010

OpEd: Conservatives see Kagan as sure vote for gay rights

Gay rights are likely to play a more central role in the upcoming fight over Elena Kagan than they have for any previous nominee. Already, conservatives are trying to paint Kagan as a guaranteed liberal vote for issues like gay marriage.
Yet on the left, the response to Kagan has been split--those who are skeptical of Kagan's support for gay rights issues and those who are glad to have a nominee they believe will side in their favor down the line.

Kagan's biggest vulnerability is her position against "don't ask, don't tell," the ban on gays openly serving in the military, which led to her decision as dean of Harvard Law School to bar military recruiters from the school's career office.

Critics and supporters alike are also focusing on the other clues to her positions. During her solicitor general confirmation hearing, for instance, she asserted that "there is no federal constitutional right to same-sex marriage."

Source: Carol Lee on Politico.com, "Gay rights"
, May 12, 2010

1st Amendment protects church's anti-gay funeral pickets.

Marine Matthew Snyder was killed in the line of duty in Iraq. On public property about 1000 feet from his funeral service, the Westboro Baptist Church followed its custom of protesting at the funerals of service members with signs condemning both homosexuality and the US for supporting it. Snyder's father has been stricken by a grievous emotional reaction since. He sued the protestors and the church for intentional infliction of emotional distress (IIED).

The Free Speech Clause of the First Amendment can be a defense, including those for IIED, if speech regards a public, rather than private, concern. The protestor's signs here concerned plainly public matters such as the moral conduct of the US and its citizens, the fate of the nation, homosexuality in the military, and scandals involving the Catholic clergy. The protestors can't be said to have used speech on
public issues to cloak an attack on the plaintiff. The protestors chose the location to increase publicity, but this does not mean the speech is less protected.

CONCURRED: BREYER concurs

The State is not always powerless to provide protection, but upholding IIED liability on the protestors here would not serve the State's interest in protecting citizens against severe emotional harm. In this case, the protestors complied with police directions, picketed where it was lawful to do so, and could not be seen from the funeral.

DISSENT: ALITO dissents

The protestors engaged in a personal attack on Snyder's memory through signs implying he was a homosexual, a Catholic, and doomed to hell for these “sins.” The direct nature of this assault on the dead marine and his family were made clear in a subsequent Internet posting directed at Snyder's character and his parents. The First Amendment does not shield these verbal assaults at such an emotionally vulnerable moment.

Women under-represented as managers enough for gender bias.

Justice Kagan joined the dissent on WAL-MART v. DUKES on Jun 20, 2011:

The plaintiffs were certified as a class by the district court in their suit against Wal-Mart, on behalf of 1.5 million female employees, seeking punitive damages and backpay owing to Wal-Mart's alleged discrimination against them in violation of Title VII of the Civil Rights Act.

HELD: Delivered by SCALIA; joined by ROBERTS, KENNEDY, THOMAS & ALITO

The certification of the class was inappropriate. Class certification requires proof that a class of persons have suffered the same injury by a general policy of discrimination. Wal-Mart's corporate policy forbids discrimination, and the plaintiff's only evidence of a general policy of discrimination is a sociologist's analysis asserting that Wal-Mart's corporate culture made it vulnerable to gender bias. Since the expert testified he could not estimate what percent of Wal-Mart employment decisions might be determined by stereotypical thinking, his testimony was not significant proof.
That Wal-Mart gave local supervisors discretion over employment matters did not show that a central direction to use that discretion in a discriminatory manner. The claims for backpay were improperly added onto a class provision that allows only equitable relief, not monetary relief.

I agree this class should not have been certified, but such a class might have proper under Rule 23(b)(3) seeking money damages. The Court should not have ruled on the class at this time, but rather remanded the issue for consideration and decision. The district court found evidence that 70% of hourly employees are female, but only 33% of managers. That, with other evidence, could support a common question, necessary for the resolution of all class members' cases, that corporate culture and lack of formal standards or training for employment decisions may have led to discrimination.